Supreme but not infallible

Supreme Court of India

NIKHIL KANEKAL IN THE MINT

Constitutional battles are usually delicious if you’re a geeky spectator of parliamentarians, policy wonks and jurists. It’s not fun to be one of the embattled sides in an unfair fight.

Journalists like to believe…that all constitutional rights depend on the right to know and the right to know depends on a free press”—Benjamin C. Bradlee, editor of The Washington Post, 2 June 1974. Constitutional battles are usually delicious if you’re a geeky spectator of parliamentarians, policy wonks and jurists. It’s not fun to be one of the embattled sides in an unfair fight.

The battle is unfair because the media is being forced to fight against the judiciary on the latter’s turf. A constitutional bench of five judges in the Supreme Court of India has set out to create a framework for the press to report on the judiciary and its proceedings. The press, unlike Parliament or the executive, has no further remedy once it gets tied down by the Supreme Court. Through Indian constitutional history, the court has been the custodian of free speech and, indirectly, of an uncurtailed and robust press. As it stands, the protector is threatening to limit our rights. Given that the court’s verdict is bound to affect the way people like me carry out our trade, I’m not pleased about the scenario in the least, especially since so much that needs to be said on our behalf is not even coming before the bench.

Yes, journalists are being represented in the case—Rajeev Dhavan has argued for the Editors’ Guild of India and the Forum for Media Professionals, Anil Divan represented The Hindu and Prashant Bhushan argued for Siddharth Varadarajan, editor of The Hindu. Other bodies such as the self-regulatory body for 46 television channels, News Broadcasters Association, the Indian Newspapers Society and the Press Council of India are being heard by the court.

I don’t blame the judges for not understanding the nuances involving journalistic craft. They are judges, not journalists. If it were so easy to understand how reporters, editors and newsrooms worked, there would be no such confrontation between the two sides. And the same is true of the media—few people in newsrooms really understand how the judiciary works.

The language of both the professions also causes mutual tension. To a journalist sitting on a newsdesk, the words “suit” and “petition” are interchangeable, and a headline writer is more likely to use the former because it fits in a smaller space. To lawyers and judges, the gulf between a judge’s quote in a news story suffixed with “said the judge” and “observed the court” is massive. The former might well be an order or directive, while the latter could merely form part of the debate between the bar and the bench. After all, judges must throw searching questions at lawyers in order to properly excavate the points of dispute. The line of questioning, while it is a good indication, doesn’t necessarily mean that the court will eventually rule in that direction.

If you read multiple newspaper reports of the same court case and compare them, they might seem like accounts from different hearings. This is because daily hearings go on for hours, more so in appellate courts. A journalist will have only a few hundred words, or a few minutes of airtime, to tell a story. Obviously the newsiest details must make it to the top—the inverted pyramid rule. And this is not usually the most crucial legal argument being propounded in a case.

Eventually, lawyers think court reporters have done a bad job. The challenge is to succinctly summarize the proceedings. Different newspapers and television channels have varying styles of presenting news.

To most journalists, especially those who don’t normally report court-related news, when a lawyer opens his mouth, all that comes out is legalese.

To be sure, the judges may decide after the hearings are completed not to do anything that may be seen to be muzzling press freedom. The Supreme Court has also clarified that the ongoing constitutional bench hearings dealing with media coverage of sub judice cases will be restricted to questions of law related only to this aspect.

But we must ask the questions since it is germane to the arguments before the court: Is the Supreme Court’s constitutional bench the right forum to resolve bad journalism that emanates from our courts? Do the judges and lawyers appearing before them have the necessary expertise to deal with the myriad issues at hand, especially if they are not of a litigious nature? Does the court have the power to tell the media how it might report judicial proceedings?

What’s happening isn’t new. There have been similar breakdowns between the courts and the press elsewhere.

In March 1975, the top jurists, lawyers, editors, reporters, government officials and other stakeholders in the US came together in what has come to be known as the Washington Conference. Both sides “tested the high ground of principle against the erosive force of real world legal and journalistic practice, agreed to disagree, sometimes even agreed, and learned more about each other than was previously known,” reads a brief preview to the discussions at the conference. Jurists and journalists sat together and while mutually devising solutions, respected each other’s domain.

In 2009, a committee of judges and journalists in the UK decided how reportage would be conducted in the criminal courts.

Dhavan has already submitted to the Indian Supreme Court that a similar joint committee of members from the press and the judiciary would be the best way out of the woods we now find ourselves in. After all, there is no defending bad journalism.

Respond to this column at nikhil.k@livemint.com

NIKHIL KANEKAL IN THE MINT

Advertisements

Press Council for court guidelines, The Hindu opposes idea

Don’t embark on a futile exercise, Shanti Bhushan tells Supreme Court Constitution Bench

The Press Council of India (PCI) on Tuesday suggested that the Supreme Court frame guidelines for the media as these would be in the interest of not only administration of justice and rights of the litigant public but also the media themselves.

“The media, both print and electronic, have been playing an important role in shaping and sustaining Indian democracy,” senior counsel P.P. Rao, appearing for the PCI, told a five-judge Constitution Bench headed by Chief Justice S.H. Kapadia. “The scheme of the Press Council Act itself shows that the intention of Parliament is to allow self-regulation by the media as far as possible. While the print media is within the purview of the Press Council Act, the electronic media is not. Therefore, it is desirable to lay down guidelines for both the print and electronic media to follow in reporting court proceedings, rather than making statutory rules.”

Mr. Rao told the Bench, which included Justices D.K. Jain, S.S. Nijjar, Ranjana Desai and J.S. Khehar, that the court, while framing the guidelines, might take into consideration the relevant norms of journalistic conduct laid down by the PCI. Explaining the powers of the PCI, counsel said: “Section 14(1) of the Press Council Act confers on the Council power to warn, admonish or censure the newspaper, news agency, the editor and the journalist or disapprove [of] the conduct of the editor or the journalist, as the case may be, after holding an enquiry into the complaints. The Council, which is presided over by a retired judge of this court and in which editors, working journalists and managements of big, medium and small newspapers are represented, has laid down Norms of Journalistic Conduct. Self-regulation is always better than statutory regulation. However, when any TV channel, newspaper or news agency fails to adhere to the guidelines laid down by this court, appropriate orders may be passed in the facts and circumstances of each case.”

“Dissolve Bench”

The former Law Minister, Shanti Bhushan, appearing for some journalists, asked the CJI to dissolve the Constitution Bench hearing the present case, saying it would be a futile exercise. He cited an instance of the former CJI, Justice A.N. Ray, dissolving a 13-judge Bench after he found no support for his case. Mr. Bhushan was referring to a move by Justice Ray, who set up the 13-judge Bench to reconsider the Kesavananda Bharti judgment in which the court had held that Parliament had no right to amend the basic structure of the Constitution.

Mr. Bhushan asked the Bench not to embark on a futile exercise which would be detrimental to the rights of the press and destroy democracy in this country. “No purpose will be solved by going through this exercise.”

Taking the Anna Hazare argument, he argued that people were sovereign in India. “That is the reason why even the right to freedom of press was not absolute in this country. It was instead left to Parliament to lay down reasonable restrictions on this freedom. All institutions in our democracy are people’s institutions. Even the judiciary is accountable to the people. People have a right to know what is happening.”

“Abridge freedom”

Senior counsel Anil Divan, appearing for the Editor of The Hindu, Siddharth Varadarajan, commenced his arguments, pointing out the anomaly of the court deciding to lay down guidelines which in this case would “abridge” the freedoms of individuals instead of “protecting” them or “disciplining” officials. Mr. Divan cited the ‘Visakha judgment,’ saying that in that case the court was only seeking to protect fundamental rights of citizens. But in this case the Bench was embarking on a quasi-legislative exercise as once the court framed guidelines they would become immune from judicial review. “I will have no remedy. But tomorrow, if Parliament were to adopt these guidelines, the person aggrieved will have a remedy. I can challenge them before you.”

Mr. Divan said the exercise undertaken by the court was not prudent in view of globalisation of information dissemination technology. “If the guidelines will be coercive or binding in nature, then it is covered by the legislative process.”

The CJI intervened, and said: “The deliberations on the guidelines were not a result of adversarial litigation. We are only trying to regulate the media to the extent that the rights of person in criminal cases are protected under Article 21 [Right to life and liberty] of the Constitution.”

The CJI asked Mr. Divan to address the question whether the rights of the press could be balanced to ensure administration of justice and protect the rights of the accused to ensure a free trial in a criminal case.

Arguments will continue on Wednesday.

Journalists may soon need law degree to report on Supreme Court

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

Print and electronic media journalists will also need to have at least 7 years and three-and-a-half years of experience, respectively

Nikhil Kanekal in The MINT

New Delhi: New Supreme Court reporting norms, if enforced, will result in 80% of the journalists who have been covering proceedings being disqualified. The Supreme Court can bar any correspondent from coverage without offering any reasons under the new rules.

Issued by the court on Saturday, the norms require that permanent and temporary accredited print journalists have a professional law degree and at least seven years of experience. Electronic media reporters need, apart from the law degree, at least three-and-a-half-years of experience. The circular did not set a deadline for the norms to come into force. Court officials didn’t throw light on when the circular would come into effect, when asked on Tuesday.

The new norms follow instances in which faults were found in coverage.

Two of these arose from coverage of the Vodafone tax dispute. Vodafone lawyer Harish Salve complained to the Supreme Court that a Press Trust of India (PTI) report on 10 August had misquoted him. Salve had argued that Vodafone could “avoid” tax as tax avoidance was permissible under law. Indian income-tax authorities have alleged that Vodafone evaded tax by structuring its $11.2 billion transaction to buy out Hutchison’s Indian cellular business through tax-saving routes. Salve spent more than a day demonstrating to the bench the difference between tax avoidance and evasion, and that his client had acted in accordance with law.

The court sought a response from PTI on an application made by Salve after the agency’s report.

On 18 August, PTI’s lawyer Shyam Divan issued an unconditional apology to the court, Vodafone and Salve.

Chief Justice S.H. Kapadia’s three-judge bench asked PTI to file a detailed affidavit explaining whether its reporter was present in the court at the time Salve made his argument. The court reportedly observed that norms for journalists needed to be revisited in light of the incident and what it said were other recent inaccurate reports.

Previously, Kapadia had expressed displeasure at a 15 December news report in a national daily that said the judiciary wanted to retain 1% of the Rs. 2,500 crore deposit made by Vodafone to the court’s registry. The report suggested that a “cash-strapped” judiciary was trying to source funds from “novel” methods such as these. Kapadia had then said: “People write whatever they want.” But the court did not initiate any action against the reporter or the newspaper.

Different benches of the court have, in the past, pointed to inaccurate or sensational news reports. However, Mint could not immediately ascertain the immediate reasons for the revision of the norms.

A.I.S. Cheema, secretary general of the court, the senior-most official on the administrative side, did not have time to meet this reporter on Tuesday for clarity on reasons for revising the norms.

The court’s media officials said reporters could make representations that would be forwarded to decision makers.

Justice Dalveer Bhandari, the Supreme Court judge in charge of granting accreditation to journalists, could not be reached on phone. His staff said he would not be available to comment till later this week.

A media law expert said India has an open court system that inspires confidence among people on the judiciary’s functioning.

“In India, unlike in the US, the press has no independent right under the freedom of expression. The journalist exercises his right as a citizen of this country under Article 19 (1)(a) and also acts as a trustee of the public’s right to know. In certain situations, he might get more access than others, but technically under our open court system that shouldn’t be necessary,” said the expert, who did not want to be named.

“Everyone can have access as it’s meant to be a check on the judges. It’s a check on the system. What is to stop me if I go into a court as lay person and write about something which I think is worthy of sharing with the public? As long as I’m not distorting the proceedings, there should be no problem,” this person said.

The Supreme Court has expressed its appreciation for the role played by the press in its annual reports. “Supreme Court attached great importance to the role of media and complementary to that of judicial organ in a democratic polity. In order to strengthen this partnership, the court took certain initiatives for mutual benefit,” said the 2008-09 report as it elucidated programmes organized by it to train court correspondents.

A February 2002 report in Frontline magazine cited a Supreme Court judgement that contained a defence of the freedom of the press. “Public trial in open court is undoubtedly essential for the healthy objective and fair administration of justice. Trial held subject to public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity and impartiality of the administration of justice.”

There are currently 14 permanent accredited correspondents in the Supreme Court and approximately 80 temporary accredited journalists, according to the court’s officials.

Editors react

Newspaper and television editors said the requirement for a law degree might be excessive and that the unilateral provision in the norms to withdraw a journalist’s accreditation was not desirable.

“Reporters need not have a law degree to report on the Supreme Court. They need to have strong news sense and an acquaintance of legal nuances,” said Arnab Goswami, editor-in-chief, Times Now.

“The new norms seem overly restrictive and will make it more difficult for the media to cover the Supreme Court properly,” said Siddharth Varadarajan, editor of The Hindu. “While I share the concerns of the honourable judges that court proceedings are sometimes not reported accurately, the solution lies in proper editorial supervision by our newspapers and TV channels, rather than by specifying, with mathematical precision, the onerous qualifications court reporters must possess in order to be given access to a court room.”

“In the absence of access, there may actually be a greater likelihood of inaccurate reporting as journalists will be forced to rely on one-sided accounts of courtroom proceedings by lawyers representing their clients,” he said.

Sanjay Gupta, editor, Dainik Jagran, published by Jagran Prakashan Ltd, said: “As an editor, I will anyway not hire a fresher to report on Supreme Court judgements. However, I don’t think there should be a prerequisite for reporters to have a degree in law. If reporters have adequate experience and are reporting judgements intelligently, and if the editors don’t have an issue, I don’t think it’s fair for the court to then have stringent norms.”

“I don’t want to comment much on the revised norm to withdraw the accreditation without giving any reason. Withdrawal of accreditation should be a bilateral dialogue between the authority and the newspaper. The editors have a right to know when a particular legal correspondent’s accreditation is withdrawn,” he added.

Abhilasha Ojha contributed to this story.

A bill to settle a terrible debt

Siddharth Varadarajan IN THE HINDU

For decades, the victims of communal and targeted violence have been denied protections of law that the rest of us take for granted. It’s time to end this injustice.

In a vibrant and mature democracy, there would be no need to have special laws to prosecute the powerful or protect the weak. If a crime takes place, the law would simply take its course. In a country like ours, however, life is not so simple. Terrible crimes can be committed involving the murder of hundreds and even thousands of people, or the loot of billions of rupees. But the law in India does not take its course. More often than not, it stands still.

If the Lokpal bill represents an effort to get the law to change its course on the crime of corruption, the new draft bill on the prevention of communal and targeted violence is a modest contribution towards ensuring that India’s citizens enjoy the protection of the state regardless of their religion, language or caste.

The draft law framed by the National Advisory Council and released earlier this month for comment and feedback is a huge improvement over the bill originally drawn up by the United Progressive Alliance government in 2005. The earlier version paid lip service to the need for a law to tackle communal violence but made matters worse by giving the authorities greater coercive powers instead of finding ways to eliminate the institutional bias against the minorities, Dalits and adivasis, which lies at the heart of all targeted violence in India.

The November 1984 massacre of Sikhs provides a good illustration of how the institutionalised “riot system” works. Let us start with the victim. She is unable to get the local police to protect the lives of her family members or property. She is unable to file a proper complaint in a police station. Senior police officers, bureaucrats and Ministers, who by now are getting reports from all across the city, State and country, do not act immediately to ensure the targeted minorities are protected. Incendiary language against the victims is freely used. Women who are raped or sexually assaulted get no sympathy or assistance. When the riot victims form makeshift relief camps, the authorities harass them and try to make them leave. The victims have to struggle for years before the authorities finally provide some compensation for the death, injury and destruction they have suffered. As for the perpetrators of the violence, they get away since the police and the government do not gather evidence, conduct no investigation and appoint biased prosecutors, thereby sabotaging the chances of conviction and punishment.

With some modifications here and there, this is the same sickening script which played out in Gujarat in 2002, when Muslims were the targeted group. On a smaller scale, all victims of organised, targeted violence — be they Tamils in Karnataka or Hindi speakers in Maharashtra or Dalits in Haryana and other parts of the country — know from experience and instinct that they cannot automatically count on the local police coming to their help should they be attacked.

If one were to abstract the single most important stylised fact from the Indian “riot system”, it is this: violence occurs and is not immediately controlled because policemen and local administrators refuse to do their duty. It is also evident that they do so because the victims belong to a minority group, precisely the kind of situation the Constituent Assembly had in mind when it wrote Article 15(1) of the Constitution: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”.

How are policemen and officials able to get away with violating the Constitution in this manner? Because they know that neither the law nor their superiors will act against them. What we need, thus, is not so much a new law defining new crimes (although that would be useful too) but a law to ensure that the police and bureaucrats and their political masters follow the existing law of the land. In other words, we need a law that punishes them for discriminating against citizens who happen to be minorities. This is what the draft Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 does.

The CTV bill sets out to protect religious and linguistic minorities in any State in India, as well as the Scheduled Castes and the Scheduled Tribes, from targeted violence, including organised violence. Apart from including the usual Indian Penal Code offences, the NAC draft modernises the definition of sexual assault to cover crimes other than rape and elaborates on the crime of hate propaganda already covered by Section 153A of the IPC. Most importantly, it broadens the definition of dereliction of duty — which is already a crime — and, for the first time in India, adds offences by public servants or other superiors for breach of command responsibility. “Where it is shown that continuous widespread or systematic unlawful activity has occurred,” the draft says, “it can be reasonably presumed that the superior in command of the public servant whose duty it was to prevent the commission of communal and targeted violence, failed to exercise supervision … and shall be guilty of the offence of breach of command responsibility.” With 10 years imprisonment prescribed for this offence, superiors will hopefully be deterred from allowing a Delhi 1984 or Gujarat 2002 to happen on their watch.

Another important feature is the dilution of the standard requirement that officials can only be prosecuted with the prior sanction of the government. The CTV bill says no sanction will be required to prosecute officials charged with offences which broadly fall under the category of dereliction of duty. For other offences, sanction to prosecute must be given or denied within 30 days, failing which it is deemed to have been given. Although the bill says the reasons for denial of sanction must be recorded in writing, it should also explicitly say that this denial is open to judicial review.

Another lacuna the bill fills is on compensation for those affected by communal and targeted violence. Today, the relief that victims get is decided by the government on an ad hoc and sometimes discriminatory basis. Section 90 and 102 of the CTV bill rectify this by prescribing an equal entitlement to relief, reparation, restitution and compensation for all persons who suffer physical, mental, psychological or monetary harm as a result of the violence, regardless of whether they belong to a minority group or not. While a review of existing state practice suggests victims who belong to a religious or linguistic ‘majority’ group in a given state do not require special legal crutches to get the police or administration to register and act on their complaints, the CTV bill correctly recognises that they are entitled to the same enhanced and prompt relief as minority victims. The language of these Sections could, however, be strengthened to bring this aspect out more strongly.

The CTV bill also envisages the creation of a National Authority for Communal Harmony, Justice and Reparation. The authority’s role will be to serve as a catalyst for implementation of the new law. Its functions will include receiving and investigating complaints of violence and dereliction of duty, and monitoring the build up of an atmosphere likely to lead to violence. It cannot compel a State government to take action — in deference to the federal nature of law enforcement — but can approach the courts for directions to be given. There will also be State-level authorities, staffed, like the National Authority, by a process the ruling party cannot rig. The monitoring of relief and rehabilitation of victims will be a major part of their responsibilities.

On the negative side of the ledger, the NAC draft makes an unnecessary reference to the power of the Centre and to Article 355 of the Constitution. The aim, presumably, is to remind the Centre of its duties in the event of a State government failing to act against incidents of organised communal or targeted violence. But the Centre already has the statutory right to intervene in such situations; if it doesn’t, the reasons are political rather than legal. The draft also unnecessarily complicates the definition of communal and targeted violence by saying the acts concerned must not only be targeted against a person by virtue of his or her membership of any group but must also “destroy the secular fabric of the nation.” Like the reference to Art. 355, this additional requirement can safely be deleted without diluting what is otherwise a sound law.

The BJP and others who have attacked the bill by raising the bogey of “minority appeasement” have got it completely wrong again. This is a law which does away with the appeasement of corrupt, dishonest and rotten policemen and which ends the discrimination to which India’s religious and linguistic minorities are routinely subjected during incidents of targeted violence. The BJP never tires of talking about what happened to the Sikhs in 1984 when the Congress was in power. Now that a law has finally been framed to make that kind of mass violence more difficult, it must not muddy the water by asking why it covers “only” the minorities. In any case, the Bill’s definition covers Hindus as Hindus in States where they are in a minority (such as Jammu and Kashmir, Punjab and Nagaland), as linguistic minorities in virtually every State, and as SCs and STs. More importantly, persons from majority communities who suffer in the course of communal and targeted incidents will be entitled to the same relief as minority victims. If someone feels there is any ambiguity about this, the bill’s language can easily be strengthened to clarify this.

At the end of the day, however, we need to be clear about one thing: India needs a law to protect its most vulnerable citizens from mass violence, its minorities. This is a duty no civilised society can wash its hands of.

Draft ‘Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011

http://www.hindu.com/2011/06/21/stories/2011062156231000.htm